Maritime Review March April 2015

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CONTENTS

MARITIME REVIEW AFRICA

IN DEPTH

ACCESSING AFRICAS STRANDED RESOURCE 06Infrastructure and energy projects will continue to drive Africas breakbulk shipping sector, but the oil price will have an impact in the short term. Colleen Jacka reports back from the Breakbulk Africa con-ference held earlier this year in Johannesburg.

COLUMNS

THROUGH THE LENS 08The Department of Agriculture, Forestries and Fisheries has its best chance yet to establish a fair and practical system for the developing and man-aging small-scale fisheries, but it has a number of formidable obstacles to overcome in the process. Claire Attwood provides a wide angle perspective.

FISHY BUSINESS 10Shaheen Moolla discusses the proposed timetable for the allocation of nine fishing sectors by the 29 February next year and concludes that the process is already flawed.

CASTING THE NET BACK 13Dave Japp and Claire Attwood look at fisheries nomenclature and specifically the origin of the names of some South African species as they delve into excerpts from an article by Romer Robinson published in 1916.

MARITIME MEMORIES 46Brian Ingpen recalls the stellar career of Captain Ian Harvey that started amid the post war ship-ping boom when the British merchant fleet was regrouping and expanding after its losses during World War II.

FEATURES

MARINE SECURITY & SURVEILLANCE 16 Security perspectives on a blue BRICS Opportunities for private maritime security in Africa

Security experts warn against dropping defences at sea 2014 Piracy and hijacking statistics Naval exercises remain key to maintain force preparedness SAMI aims to make sense of maritime threats in West Africa Boosting regional maritime security coordina tion in west and central Africa Capacity building remains a focus for SA Navy

MARINE LAW & INSURANCE 25 Cabinet continues to consider South African maritime policy Statistics report a contined reduction in total losses Ranking the claims in Admiralty law No new drilling for Ghana in disputed area Resolving a contamination claim in West Africa Port Authority liable for delays and damage in Maputo grounding case Marine insurance and risk management Stowaways cause risk

MARITIME NEWS

AFRICAN NEWS 31 Full steam ahead for tug build Rebuilding Somalias maritime sector A Richards Bay first Cape Town shipbuilder expands portfolio Name change for East African ship supplier Congo and Angola included in trade route Grindrod results Port creates more than 800 jobs in five years Facilitating service via an app Algerian dredger revitalised Massive investment in container depot at Coega Nigerian ports post record cargo throughput World vies to operate Kenyas new container terminal Upgraded South Africa to West Africa route International company snaps up South African marine service group

Despite the downturn in piracy in certain regions, our maritime domain continues to attract criminal activities from illegal fishing to hijacking, piracy, terrorism and oil theft. Only the coordinated collabora-tion between coalition navies, private security companies, the maritime industry and government can maintain good order at sea. The need to work within the framework of UNCLOS as well as national legislation creates added challenges for dealing with a surge at sea that answers to none of these requirements.

Given Africas assets and location, it is not surprising that the conti-nents maritime security issues are of consequence to the international maritime community. At a conference to discuss West Africas maritime threats, Patricia Davies of European External Action Services (EEAS) discussed the EUs action plan for the Gulf of Guinea (GoG) over the

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OFFSHORE NEWS 38 Credit facility to fund capex offshore Ghana Technology partnership High-spec vessel destined for West African oil fields New Generation of vessels for African offshore sector Adapting to the fragility of the oil and gas sectors Exploration and production updates Capex in place for deepwater West Africa Cape Town shipyard shifts focus to pursue off shore markets

INTERNATIONAL NEWS 45 Nine countries collaborate to develop mining tool Industry input sought on deep-sea investment Port of London to unveil latest vessel International briefs

PEOPLE AND EVENTS

NEWS 48 SAMSA paddlers gear up for 2017 African hopeful for top IMO position Supporting local artists Dutch cadet visits Woltemade SS Mendi Memorial TNPA head TPT executive changes Saldanha Terminals management changes IBIA Southern Africa AGM confirms commitment South African Navy festival as popular as ever

GREEN MARINE

NEWS AND UPDATES 51 Coastal management conference Is South Africas Coastal Management act doing its job? Addressing green challenges at smaller ports Blue flag beaches are big business A process approach to developing coastal man agement programmes Eastern Cape IDZ aims to improve air quality A pollution prevention player

next five years and highlighted short, medium and long-term milestones for the region from an EU perspective.

The GoG is fast getting the attention that the Gulf of Aidan received as the upsurge of piracy of the Somalian coast caught hold of the shipping sector. Territorial waters off the West Coast of Africa are pinpointed as being high-risk areas. Piracy off Nigeria, in particular, is seen to be becoming more sophisticated and tanker operators seem to be most at risk.

For an update on maritime security read our feature from page 16 to 24.

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TEXPRESSIONS Comments from the editor

0202 Maritime Review AfricaMARCH / APRIL 2015

EDITORS CHOICE

RECOMMENDED READS:

The inclusion of the small-scale fisher into the ambit of fisheries management has been a challenge. Read Claire Attwoods views on the current process on page 8

ON THE WEB

www.maritime.co.zaIndustry news and headlines.www.maritimematters.netOur editors blog.

CONTACT

We look forward to receiving your company news. Please send your press releases to us or invite us to visit your company:[email protected]

So perhaps our feature on marine in-surance is well timed for this issue. A contribution from Marsh clearly out-lines the need to fully understand what we require from our policies. A clear picture of what is covered and what is not is crucial before calamity strikes. Interestingly, however, international re-

ports suggest that claims are down on pre-vious years (when measuring 2014 against its predecessors) and the International Union of Marine Insurances (IUMI) sta-tistics confirm a reduction of losses in the shipping sectors. More interesting is the reported increase in the percentage of the frequency of heavy weather and grounding related total losses.

On a rather different note, but in an at-tempt to mitigate major losses by Ghana, the Special Chamber of the International Tribunal of the Law of the Sea (ITLOS) did not rule in favour of Cte dIvoire and order the complete halt of existing offshore ex-ploration and drilling in a disputed marine area between the two countries. Instead the Chamber ordered that no new drilling take place, but acknowledged that to halt or remove current operations would place an unfair burden on Ghana.

The maritime domain remains an import-ant strategic, economic and challenging area for many African countries. Much of the continents wealth can be capitalised by claiming soveriengty of the extended continental shelf but the responsibility to police and govern this domain is question-able in many regions.

The lack of naval capability has lead to

overfishing, illegal fishing, piracy, hijacking, smuggling and oil theft. Maritime security and surveillance will continue to be a head-ache for Africa for some time and security experts suggest that private security com-panies offer an opportunity for the conti-nent to plug gaps.

Dirk Siebels, Associate Analyst, Risk Intelli-gence believes that Africa and African gov-ernments need to be open to exploring the opportunities that exist to use Private Mari-time Security Companies (PMSC) expertise in fields ranging from training to logistics.

In a conversation I had with a stalwart of the industry, I was not that surprised to learn anecdotally that some collusion still exists between criminal elements and the enforcers. In some cases there is outright bribery taking place while in other cases patrol crews are intimidated to believe that the lives of their families may be in danger if they do not supply patrol information.

In the light of these allegations, it is satisfy-ing to see some news headlines that detail arrests of marine poachers whether at sea or on land in South Africa recently.

Our feature on Maritime Security explores some of the themes dominating discussions in the African domain, but real collabora-tion seems key to the successful eradication of criminal activities at sea. Inter and intra governmental cooperation coupled with private sector involvement will mean more eyes at sea.

So until the next issue stay safe, collabo-rate and prosper.

Colleen Jacka, editor

I have come to realise over the last month that insurance is an absolutely vital necessity. It used to be one of those grudge payments, but my recent experience shows that negligence, criminal elements, wear and tear as well as human error all have a role to play in sneaking up and derailing our day-to-day routines.

Maritime security and surveillance: p.16 24

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QUAY QUOTES Who is saying what in the maritime industry

EXPRESSIONS Quay quotes


06 The classical approach is to get rid of people, but this is a problem when the price (of oil) goes back up. It is important to keep people and skills in place, says Independent African Oil and Gas consultant, Dave Wright.

08 If we (South Africa) dont jack ourselves up for what is happening in the region, we are going to lose out. Saldanha Bay is taking far too long, says Paul Runge of Africa Access Project.

09 There is space for the small-scale and the linefish sector to co-exist, but I have some serious concerns. You cannot use a declining re-source to alleviate poverty, says Wally Croome, chairman of the South African Commercial Line-fish Association.

10 Does the fisheries department under-stand what the current transformation profile of the fishery is? What is the definition and ele-ments of transformation? To what extent have right holders and shareholders invested in the fishery since 2005? Has the fishery successfully created jobs since 2005? And what of the eco-nomic and biological sustainability of the fish-ery? Has the fishery been supported to an extent where horse mackerel is increasingly landed and processed in South Africa, asks Shaheen Moolla.

18 BRICS represents a rising block of po-tentially powerful states that harbours a large, but weakly debated maritime landscape. BRICS is also a rising maritime actor bound to influence or change the rules of the sea to better suit its politico-economic agenda as actualised mari-time influence strengthens both political and economic power, writes Francois Vrey.

20 Any private security personnel entering Nigerian waters, whether armed or unarmed, are at risk because of the vagrancies of their au-thorities, says Mike Mapson, Operations Man-ager at 30 South Maritime.

20 What was particularly heartening about the decision was to note the independence of the Mozambique Court and its willingness to give a judgement in favour a foreign entity against a partially State-owned local entity. More importantly, this judgment may have some other implications for MPDC given the recent spate of groundings at both the berth and in the channel of various vessels, says Andrew Pike of Bowman Gilfillan.

31 We have committed to ensuring that each tug has a minimum of 60 percent locally manufactured components, while partnering with international companies on the remaining

aspects that cannot be manufactured here, for example the engines and propulsion units, says Prasheen Maharaj, CEO of SA Shipyards.

34 I am pleased that the port has contrib-uted towards job-creation in the area of the East-ern Cape. To date, more than 825 permanent jobs have been created since the operationalisa-tion of the port in October 2009, says Minister Lynne Brown.

35 A closer location to logistics activities and the Port of Ngqura will help reduce con-tainer movements and intermodal costs, which is particularly beneficial for a metropolitan area such as Nelson Mandela Bay where maritime rail terminals are in high density and in a congested area, says Mervyn Padayachee, MSC Logistics Director.

37 Subtech is very excited and proud to be part of the James Fisher Group. With our close synergies to many of Fishers current services and group companies, as well as our geographic footprint, we look forward to enhancing our cur-rent market offering and to being an ideal shop front for the Groups services into Southern Afri-ca, says Greg Raaff, CEO of Subtech.

39 Our aim is to redefine the concept of quality tonnage in the Gulf of Guinea and partic-ularly in Nigeria. We plan to locally develop the necessary skill sets that will sustain our quality service to the most demanding clientele who run very complex operations in the most challenging environments, says Gbolahan Shaba, COO of LATC Marine.

44 A new stronger focus on project man-agement will ensure that we are aligned with the requirements of our clients, the drilling contractors, and, importantly, to ensure that we are aligned with a changing market, says Colin Schreuder, Marketing Manager for DCD Marine Cape Town.

54 Litter free beaches are such an easy fix and yet little or no progress has been made, says Ted Knott, Coastal Coordinator for the City of Cape Town.

56 Obviously cleaning up 14 beaches on a month-to-month basis is super reward- ing knowing that after our clean-ups the beaches are usually free of around one ton of rubbish. This is rubbish that would have ended up in the ocean, in the stomachs of sea animals or wrapped around boats, ships, yacht propellers or keels, says Gregory Player of Clean C.

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Applaud The Lawhill Maritime Centre celebrates their 20th anniversary this year and should be applauded for their huge con-tributions, under Brian Ingpen, to the de-velopment of new talent for the maritime industry.

Keelhauled When news surfaced that the South Afri-can Navy had accidentally fired on unsus-pecting fishermen during a naval exercise, the maritime community should rightly have been angered. For this reason we choose to keelhaul the SA Navy in this issue.

The maritime community will sure-ly understand the concept of being keelhauled and we have reinstated the practice, which was allegedly instituted by the British Navy as a way of severely rebuking a sub-ordinate. But at the same time we will also applaud those individuals and companies in recognition of significant achievements.

& KEEL HAULED APPLAUD

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IN DEPTH Accessing Africas stranded resources


Africa benefited from easy US dollar investment during the oil price super cycle that saw oil trading around the $100 a barrel level. Times have changed and Thalma Corbett of NKC highlights that the cur-rent status of the oil price will continue to impact on external investment into Africa.

Speaking at the Breakbulk Africa Con-ference earlier this year, Corbett emphasised the risks facing African economies from a diminishing demand for African oil to a slower growth in China. Factoring in domestic risks such as fiscal mismanagement, rising external debt as well as security and terrorism threats she nevertheless spoke about the shifting mar-kets and Chinas continued appetite for in-vesting in Africa.

Chinese investment into energy proj-

ects has increased from $3bn in 2006 to $14.5bn in 2013. Uganda, Nigeria, Ethiopia and Tanzania have seen the largest portion of these investments. Sub Saharan Africas transport sector has also benefited from Chinese funding with the sector repre-senting just over 20 percent of Chinas to-tal external investment.

We have what the world wants, but the stuff is in remote sites, says Paul Runge, Managing Director of Africa Access Project as he juxtaposed Africas stranded resourc-es against an appetite for project invest-ment, financing and training. Its all about access and logistics, he said.

The oil and gas scenarioA panel discussion on the impact of the

oil and gas markets on Africas breakbulk and project market highlighted the need for service providers to wake up to the need for price consciousness as well as lo-cal content development.

Independent African Oil and Gas con-sultant, Dave Wright emphasised the need to maintain the market. He stressed the importance of innovation. We need to do things differently and smarter, he said adding that while the oil price was gov-erned globally, the gas price was indepen-dent and regional.

The classical approach is to get rid of people, but this is a problem when the price (of oil) goes back up. It is import-ant to keep people and skills in place, he warned.

Working on the coalface of the sector as a service provider across the board, Howie Frylinck, Trade Lane Manager Angola, GAC Laser International Logistics, reported on his customers demands to cut costs. We need to be innovative about where we can cut costs, he said.

With a view to meeting the local content requirements in many African countries, Pascal Ochquee, Regional Logistics Man-ager for ESSA, Halliburton pointed out that this oft-lamented challenge could actually be seen as an opportunity to reduce costs especially those associated with the hir-ing of expats on projects.

Speaking with some degree of caution, Runge rattled off a list of existing projects in Africa and admitted that he had never in the last 30 years of doing business on the continent seen such a flow of projects.

We are in new territory now not only from a perspective of quantity, but quality as well, he said admonishing the critics. While things take a long time and there is still some bureaucratic nonsense, there is forward momentum.

Yes the drop of resource prices has had an effect you dont need to be a rocket scientist to figure that out, its obvious. And its going to impact on the breakbulk sector which is driven by the market, he added as he highlighted some of the port development taking place in response to predetermined needs on the continent.

Port development As hosts for the Breakbulk Africa con-

ference, South Africa could be caught napping while port development speeds up on the continent to provide access to resources. Runge emphasised the need for port and rail infrastructure to work to-gether. He also stressed the importance of collaboration.

Accessing Africas stranded resourcesInfrastructure and energy projects continue to drive Africas breakbulk shipping sector, but the oil price will have an impact in the short term.

Multipurpose and Heavy lift fleet update

Speaking at the Breakbulk Africa conference, Susan Oat-way, Senior Analyst at Drewry Shipping Consultants, provided some input on the current and future outlook for the multipurpose and heavy lift transportation market.

According to the graphs presented at the conference, Oatway outlined how deliveries for multipurpose vessels had slowly declined after hitting a peak in 2011, with 2014 showing the lowest delivery rate in almost a decade.

Despite a high delivery rate of project carriers to the sec-tor, Oatway described a slump in project cargo linked to the diminished oil price. As the oil price improves, we will see a return to project cargo, she said.

Outlining the trends in newbuild activity for the multipurpose fleet, Oatway con-firmed that 47 percent of vessels on order as of the beginning of 2015 would have heave lift capability and that the project carriers represented an average of 63 percent of newbuilds over the last five years. Coupled to this is the decline of the simple mul-tipurpose fleet.

Highlighting some of the trends and challenges she pointed to: A steady development in the fleet of project carriers New investment in eco designs and built to high specifications Continued encroachment of competing sectors that is unlikely to dissipate Development driven by growth in developing economies

Accessing Africas stranded resources IN DEPTH

0707Maritime Review AfricaMARCH / APRIL 2015

We need to form powerful and strate-gic alliances, he said citing the success of the Maputo Corridor as well as Grindrods investment in rail. He also pointed to the Namibian scenario where the decision to develop Walvis Bay will likely pay divi-dends.

Warning that routing could move away from South African ports in the future without the right type of investment, he also pointed to proposed developments in Saldanha Bay to cater for the offshore oil and gas industry.

If we (South Africa) dont jack ourselves up for what is happening in the region, we are going to lose out. Saldanha Bay is taking far too long, he said adding that Richards Bay should not be overlooked for development to accommodate the oil and gas sectors. Richards Bay is massive compared to some of the ports that are currently being developed for these pur-poses, he says.

Social investment a business imperative

Linked intrinsically to the concept of lo-cal content, is the idea of social investment in Africa. Corporate Social Investment (CS) is a business imperative on the continent. The days of Africas wealth being stripped by foreign interests and only benefiting a handful of elites in the country are com-ing to an end as most countries implement policies that govern good corporate citi-zenship.

The aim is to ensure that all benefit from the resources in the host country. Runge admits that it can be a bit of a balancing act for the country as they aim to improve the lives of their citizens without deterring investors.

But, he adds that the ripple effect of many of the projects being undertaken in Africa means that there is a lot of oppor-

tunity for local content development as one considers the requirements associat-ed with the project including accommoda-tion, transport, food and much more.

Its clear that Africa still faces many of the same challenges that have long been lamented at conferences over the last de-cade. It is also clear that some countries seem quicker to awaken to the need to develop infrastructure and eliminate some of the red tap associated with unlocking projects.

The oil price has certainly had its impact, but getting out of the starting blocks ahead of the rest of the continent will ultimately lead to the unlocking of economic growth for the African country that proves to be a seasoned sprinter. And, as one speaker pointed out, national interests will always win over regional aspirations.

Yes the drop of resource prices has had an effect you dont need to be a

rocket scientist to figure that out, its obvious. And

its going to impact on the breakbulk sector which is

driven by the market.

Top: Delegates from Africa convened in Johan-nesburg at the Breakbulk Africa conference.

Middle left: (l-r) Participating in the oil and gas panel were Pascal Ochquee (ESSA, Halliburton), Ebrahim Takolia (SAOGA), Dave Wright (private consultant) and Howie Frylinck (GAC).

Middle right: First time exhibitor, Lampie Grobler on the Frits Kroon Transport stand.

Bottom left: The Absolute Rigging stand was tended by Tashreeq Burns, Riyaad Hatta, Miesh-qah Vaaie and Madre Ross.

Bottom right: As a second time exhibitor, Mutual & Federal was back at the Breakbulk Africa ex-hibition. Katlego Morulani hopes, however, that future shows attract interest from more port operators.

THROUGH THE FISH EYE LENS A wide-angle perspective on commercial fishing


Early in March, the Department pub-lished proposed regulations relating to small-scale fishing and asked for comments from stakeholders. The regula-tions represent the latest tranche of paper-work from DAFF as it moves towards meet-ing a 2007 ruling by the Equality Court that small-scale fishers should be accommodat-ed within the framework of the Marine Liv-ing Resources Act.

RejectionMost people with a stake in the local fish-

ing industry will remember that the South African Artisanal Fishers Association and the non-governmental organisation, Ma-sifundise, rejected the outcome of the long-term rights allocations of 2006. They argued that only a small number of tradi-tional fishers were accommodated by the allocation, with the result that thousands of poor coastal people were excluded from participating in fishing, despite historic claims to fisheries resources.

The Equality Court agreed, and at its be-hest government extended so-called in-terim relief rights that would provide fishers with a livelihood until such time as government could draft and approve a pol-icy and accommodate the small-scale fish-ing sector within the ambit of the Marine Living Resources Act.

Little did the fishers (or the fishing indus-try) know that it would take government five years to approve a policy and anoth-er three to begin to implement it. In the meantime, in-terim relief (which was originally con-sidered a stop-gap measure) has be-come a perma-nent feature, even though the limited access the rights afford is considered inadequate, and the system is known to have provided opportunities for large scale poaching of the west coast rock lobster re-source.

Fatigue factorIt would be true to say that the ruling by

the Equality Court in 2007, gave real hope to small-scale fishers that they would even-tually find a place within the formal fisher-ies management regime. But eight years later, after several false starts and emp-

ty promises, there is an understandable amount of scepticism about the planned roll-out of the Policy for the Small Scale Fisheries Sector as well as a great deal of fatigue.

The director of Small Scale Fisheries Man-agement at DAFF, Craig Smith, acknowledg-es the fatigue factor, but says that since mid-2014, the department has been laying the groundwork for the implementation of the policy and the publication of the draft regulations is an indication that govern-ment is serious about finally meeting the demands of small-scale fishers.

People on the ground are surprisingly positive, despite the false starts the De-partment has made, he says, our interac-tions with the fishers have been good.

Smith is a fisheries scientist by training and has a solid reputation as an adminis-trator. He says his interactions in the fishing communities have persuaded him that the governments former emphasis on allocat-ing commercial rights had an unintended impact on thousands of coastal people who were unable to compete in the commercial environment and secure a place in the fish-ing industry.

We missed something, he says candidly, these fishing communities should be the heartbeat of the fishing industry.

A developmental approachSmith says that in implementing the Policy

for the Small Scale Fisheries Sector, DAFF is taking a develop-mental approach. This is very apparent in the policy, which outlines a communi-ty-based approach to harvesting and managing marine liv-ing resources: The department

recognises that allo-cation of rights is only

part of the process of uplifting the commu-nities, but that on-going and cross-sectoral support is required to achieve this. The policy further introduces a dispensation designed to promote the development and upliftment of the Small Scale fishing com-munities by contributing to efforts to erad-icate poverty; ensure food security and promote equity without endangering the ecological sustainability of the resources these communities depend upon.

Small-scale is on our doorstepThe Department of Agricul-ture, Forestry and Fisheries

(DAFF) has its best chance yet to establish a fair and

practical system for de-veloping and managing

small-scale fisheries, but it has a number of formidable

obstacles to overcome in the process, not the least of

which is the fatigue and cyn-icism of small-scale fishers

themselves.

Interim relief has become a per-manent feature, even though the limited access the rights afford is considered inadequate, and the system is known to have provid-ed opportunities for large scale poaching of the west coast rock lobster resource.

CLAIRE ATTWOOD PROVIDES A WIDE ANGLE PERSPECTIVE

A wide-angle perspective on commercial fishing THROUGH THE FISH EYE LENS


Reallocating rightsOne of the flaws in the proposed regula-

tions is that they give no hint as to how gov-ernment intends to make room for small-scale fishers in a fully subscribed fishery. This omission is identified by Pedro Garcia, chairman of the South African United Fish-ing Front who writes: Also notably absent is how these regulations intend addressing the reallocation of rights from industrial companies to communities. Many of these rights, especially the small pelagics, which are well within the opera-tional capacity of fishing communities, are critical species in terms of employment opportunities, sustaining local fish markets and most importantly contributing to en-hanced food security programmes for pov-erty stricken South Africans.

The reallocation of rights is, of course, the nub of the problem. To make way for the fishing cooperatives, others are going to lose at least some of their rights.

I found the commercial fishing industry to be remarkably sanguine about the pos-sibility of a reallocation of inshore rights. Suleiman Salie, who is chairman of Fish SA, said that the fishing industry has accepted the need to accommodate small-scale fish-eries.

Weve always expressed our desire to be involved in the implementation plan, he said, adding that there will be an opportu-nity for the commercial fishing industry to collaborate and cooperate with small-scale fishers. Salie is all too aware, however, that the implementation of the policy is not go-ing to be a smooth ride. There is conflict within the fishing communities and, he says, the involvement of organised crime in the poaching of marine resources is not go-ing to disappear simply because South Af-rica now has a small-scale fisheries policy.

Though considerably less positive than Salie, I also sensed a degree of acceptance from Wally Croome, chairman of the South African Commercial Linefish Association. There is space for small-scale and the line-fish sector to co-exist, but I have some seri-ous concerns, he says.

Among these is the fact that the linefish-ery is experiencing one of its worst years ever: You cannot use a declining resource to alleviate poverty, said Croome, explain-ing that the fishery has caught almost no snoek since about June last year.

Understanding the planCroome is also concerned about fishing

crews whether they will be permitted to work for a wage if they are members of a community cooperative and he says that people in the fishing communities are aghast at the amount of work they need to

do to register and form cooperatives.

A close reading of the draft regulations gives an indication of the way in which DAFF plans to roll-out rights to small-scale communities, monitor and control their catches and afford communities the oppor-tunity to process and sell their catch.

The plan works like this: the DAFF will identify, verify and register small-scale fish-ing communities; each person in a commu-nity who can demonstrate that he or she derives the major part of their livelihood from fishing will also be registered. Fishers must be over 18-years old, South African citizens and able to show historic participa-tion in the fishing industry.

The idea is that these fishers get togeth-er to form a community cooperative and small-scale rights will only be allocated to cooperatives, not to individuals or compa-

nies. Each cooperative must be registered in terms of the Cooperative Act and have a constitution and a business plan that cov-ers a broad range of subjects, such as the species to be harvested, mechanisms for catch reporting, training requirements and developmental needs, among other things.

Understandably, fishers and communities are concerned about how they will achieve these requirements, but Smith explains that

the department is about to appoint service providers that will manage the community consultation process on its behalf. Two ser-vice providers will be appointed one for the Western and Northern Cape and one for the Eastern Cape and KwaZulu-Natal.

The service providers will systematical-ly consult with fishing communities; identify and verify individual fishers; take the commu-nity through the process of drafting a constitution

and a business plan and eventually help them to apply for long-term rights. Training will be provided to cooperative members so that they understand their rights and responsibilities as members of the cooper-atives.

Just giving access to marine resources is not enough, said Smith, it has to be more structured than that.

The idea is that each fishing community will establish a primary cooperative and, if they want to, join with other cooperatives to form a secondary cooperative. Rights to process fish will only be granted to second-ary cooperatives.

The notion of fisheries cooperatives has been bandied about for some time and the description of cooperatives that is provid-ed in the draft regulations makes intuitive sense, but one of the sticking points for the communities themselves may be the stig-ma attached to the word cooperative.

In the early 2000s the South African Com-mercial Fishermans Cooperative (SACFC) secured significant inshore fishing rights, ostensibly on behalf of hundreds of tradi-tional fishers, but the fishers aspirations were dashed because they earned few, if any, benefits and the company eventual-ly imploded after allegations of fraud and corruption escalated into violence and in-timidation.

Everybody I spoke to about the regulations relating to small-scale fishing mentioned the failure of the SACFC and expressed con-cerns about the cooperative system.

The global contextIts interesting to consider that South Afri-

cas struggle to significantly shift the focus of its fisheries legislation and give expres-sion to the rights and needs of small-scale fishers is not taking place in a vacuum. In fact, it could be argued that in publishing

According to FAO, small-scale fish-eries supply around 50 percent of all global fish catches and provide a valuable source of animal protein for billions of people worldwide.

50%

One of the flaws in the proposed regulations is that they give no hint as to how government intends to make room for small-scale fishers in a fully subscribed fishery.

>>Continued on p 12

FISHY BUSINESS Shaheen Moolla discusses the fishing sector


Also during March, the South Af-rican fishing industry and the broader South African public were provided with the full-length version of the Harris Nupen Molebatsi Report and a more recent report on the state of readiness of the Fisheries Department to allocate fishing rights during 2015 (now February 2016).

This latter report was authored by an entity called Emang Basadi Legal and Fo-rensics (Pty) Ltd. The Emang Basadi report was particularly Orwellian given that its authors were tasked with providing advice on fishing rights allocation pro-cesses despite not having any prior apparent experience in preparing, administering or implement-ing such complex processes.

Damaging reportsBoth reports however paint a picture

of rampant chaos and maladministration dominating the Fisheries Department. The Harris Nupen Report, inter alia, states that the department requires three years to prepare for and implement a fair, justifiable and legally defensible fishing rights alloca-tion process.

The Emang Basadi Report on the other hand proposes that, although the depart-ment is not ready for a fishing rights al-location process in 2015 (due to a lack of planning, including the lack of an adequate budget to fund a rights allocation process), those fishing rights set to expire in 2015 should all be extended until 29 February 2016. This report furthermore alleges di-rect political interference in the awarding of fishing rights in 2013.

Given that the authors of the Harris Nu-pen report had personally been involved in both the 2001 and 2005 fishing rights allocation processes, I am more inclined to lend more weight to their advice. Prior to the FRAP Farce of 2013, I had repeated-ly warned that the department could not lawfully allocate fishing rights according to its initial 12-month and then six-month allocation timetable. I, therefore, find it in-credulous that the department insists on traversing the same path of fishing rights allocation process failure once again.

A foundation neededThe foundation of any fishing rights allo-

cation process is to scientifically and me-thodically determine the extent to which current policy and legislative objectives and obligations have been met and where these have not been met, to understand the reasons for the failure to attain the ob-jectives and obligations. Depending on the particular size and complexities of a fishery and the nature of the policy objectives set, such a process can take months. The pro-cess of reviewing the 2001/2002 fishing rights allocation process began in 2003 in

preparation for the 2005 rights allocation process.

The process of draft-ing fishery specific policies in light of the review and informal

consultation processes with right holders policy began in early 2004 and culminat-ed with the gazetting of draft policies a year later. Despite the fact that such pro-cesses required 18 months previously, the departments proposed timetable makes provision for a mere three months to un-dertake this critical phase of policy review, draft policy preparation and consultation, which will ultimately determine whether any subsequent fishing rights allocation process stands up to legal scrutiny. It does truly beggar belief!

Baseline data is essentialHow will the department review its poli-

cies when it does not have any current and reliable baseline data? For example, let us consider the horse mackerel fishery. The current policy objectives as recorded in the 2005 Horse Mackerel Policy are as follows:

To notably improve the transformation profile of the horse mackerel fishery;

To create an environment that attracts investment and stimulates job creation;

To support the economic viability and environmental sustainability of the fishery; and

Encourage the landing and processing of horse mackerel for human consump-tion in South Africa.

Does the fisheries department under-stand what the current transformation pro-file of the fishery is? What is the definition and elements of transformation? To what extent have right holders and shareholders invested in the fishery since 2005? Has the fishery successfully created jobs since 2005? And what of the economic and bio-

During March 2015, the Fish-eries Department presented

its proposed timetable for the allocation of fishing rights

in nine fishing sectors by 29 February 2016. Notably, no

mention is made of attending to the forgotten abalone fish-

ing rights allocation process of 2014 and precious little is

again said about fixing the unlawful 2013 Fishing Rights

Allocation Process (FRAP).

Can the Fisheries Department allocate any fishing rights by 29 February 2016?

Both reports however paint a pic-ture of rampant chaos and malad-ministration dominating the Fish-eries Department.

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FISHY BUSINESS Shaheen Moolla discusses the fishing sector


logical sustainability of the fishery? Has the fishery been supported to an extent where horse mackerel is increasingly landed and processed in South Africa?

To determine the extent to which these policy objectives have been met, requires time consuming consultation processes and investigations which have not been undertaken to date despite the fact that the horse mackerel fishery is a small fishery with 14 quota holders.

That the fisheries department has very lit-tle idea as to the social, economic and bio-logical status of the fisheries it is supposed to be regulating, is perhaps comical-ly confirmed by a recent request to right holders in the tuna long line fish-ery for basic data required by Par-liaments portfolio committee on fish-eries. A departmen-tal official request-ed quota holders to urgently provide the department with the following information informa-tion that ought to be at the departments proverbial fingertips

The number of South Africans current-ly employed in the tuna long line fishery based on a 40 ton TAC for the Southern Bluefin Tuna (SBT) and what would be pos-sible from a 150 ton SBT TAC?

Details about the SBT fishery, including which vessels are active in the fishery and whether these are owned by SA nationals or foreign nationals.

Similar questions were asked with regard to South Af-ricas Indian Ocean Tuna Commis-sion-related fishing activities. How can it be that such basic data is not known to DAFF during the very year it was supposed to be allocating fish-ing rights in the tuna long line sector? How is that DAFF does not know how many fish-ing vessels target SBT and what their Flag status is?

It stands to reason that without such baseline data being available, any fishing rights allocation process would be unjus-

tifiable, illogical, irrational and, therefore, unlawful.

Bespoke policies requiredThe proposed allocation of fishing rights

in February 2016 spans an extremely di-verse set of fisheries from capital-in-tensive offshore fisheries such as horse mackerel and toothfish to high-value, high demand nearshore fisheries such as lobster and seaweeds to low-value, marginal fish-eries such as beach seine and treknets.

Accordingly, logic and plain common sense require that each of these sectors re-quire bespoke policy reviews, analyses and

consultation pro-cesses in order to develop logical and rational policy doc-uments, application forms and fishing right allocation processes. A single one-process-for-all-sectors will sim-ply not do.

For what it is worth and for the sake of preparing a

legitimate and lawful rights allocation pro-cess by 29 February 2016, my advice to the department is the following:

Accept that it is legally and practically im-possible to allocate more than 2500 fishing rights in 10 (including abalone) extremely important fishery sectors in less than 11 months.

Identify those fishery sectors that are sufficiently small, extremely well-organ-ised and represented by industrial bodies

capable of provid-ing the fisheries department with all the requisite base-line data to review current policies and prepare a new pol-icy framework with appropriate and current objectives

and to implement a justifiable rights allo-cation process.

For example, consider allocating fishing rights by 29 February 2016 in sectors such as horse mackerel, toothfish and hake in-shore trawl and immediately provide real-istic re-allocation timeframes and clarity to right holders in the remaining sectors.

To determine the extent to which these policy objectives have been met, requires time consuming consultation processes and inves-tigations which have not been un-dertaken to date despite the fact that the horse mackerel fishery is a small fishery with 14 quota holders.

Accept that it is legally and prac-tically impossible to allocate more than 2500 fishing rights in 10 (including abalone) extremely important fishery sectors in less than 11 months.

Continued from p 09

the regulations relating to small-scale fisheries, South

Africa is a step ahead of some other countries.

It was only last year that the Food and Agriculture Organisation of the United Nations (FAO) endorsed the landmark Voluntary Guidelines for Securing Sustainable Small-scale Fisheries (SSF) in the Context of Food Security and Poverty Eradication, the first negotiated instrument devoted entirely to small-scale fisheries.

The document was developed by more than 4,000 people in 120 countries and is designed to support millions of small-scale fishers, par-ticularly in developing countries, by promoting their human rights and safeguarding the sustainable use of the fishery resources they depend on for their livelihoods.

According to FAO, small-scale fish-eries supply around 50 percent of all global fish catches and provide a valuable source of animal protein for billions of people worldwide. The SSF guidelines recognise that, in spite of their importance, many small-scale fishing communities continue to be marginalised. As is the case in South Africa, small-scale fishers usually live in remote areas with limited access to markets, education and social ser-vices and they face a range of chal-lenges, from unsafe working con-ditions to pollution, environmental degradation and climate change that threaten the resources they depend on for their livelihoods.

FAO is developing a global assis-tance programme to help countries implement the guidelines and it would not be out of place for South Africa to apply for help from the world body.

The task that lies for ahead the DAFF is mammoth: in implementing the Policy for the Small Scale Fish-eries Sector, the department is re-quired to turn the past 50 or 60 years of fisheries management on its head and institute a system that looks be-yond the commercial exploitation of fisheries to the needs and aspira-tions of thousands of impoverished fishers who have waited and cam-paigned for a management system that acknowledges their traditional right of access to the sea, and allows them a means to make a living.

>>

100 Years of fisheries management CASTING THE NET BACK


One of the species Robinson writes about is Sciaena aquila, which was known at the time as Kabeljaauw:

As Robinson points out, the kabeljaauw is no more a salmon than it is a cod. He goes on to say that the name white sea bass or channel bass would be more appropriate because it is less misleading than the name salmon which is not justified either by the species, the appearance or the sporting qualities of the fish.

Today we know that seabass is also off the mark: the fish we know as kabeljou in Afrikaans and kob in English is part of the Sciaenidae (drums and croakers) family. There are nine species in the genus Argy-rosomus: large fishes that can grow to over 2m in length and are commonly targeted as game fish.

The scientific name Sciaena aquila that is quoted by Robinson was also wrong, though to be fair to Robinson, the Cape Salmon he refers to might have been geelbek, a fish that is still known as Cape Salmon today. Geelbek and kob look quite similar and fall into the same family of Sciaenidae.

Kob, or kabeljou was reclassified as Argy-rosomus hololepidotus in 1977 (Smiths Sea Fishes) and then, in the mid-1990s, taxono-mists and fisheries scientists revealed that, Argyrosomus hololepidotus was not one, but four different species.

Former Marine and Coastal Management fisheries scientist, Marc Griffiths and veter-an taxonomist, Phil Heemstra (who works for the South African Institute for Aquatic Biodiversity) established that Argyrosomus hololepidotus is endemic to Madagascar and three different species of Argyrosomus occur off South Africa.

These are Argyrosomus japonicas, com-monly known as dusky kob or daga salmon; Argyrosomus inodorus known as silver kob; and Argyrosomus thorpei, the squaretail kob that occurs off KwaZulu-Natal.

Biological studies reveal moreBiological studies revealed that they each

have distinct growth rates and sizes at ma-turity. According to Bruce Mann, a senior scientist with the Oceanographic Research Institute (ORI), dusky kob reach maturity at a length of about 100 cm whereas silver kob and squaretail kob mature much more quickly, reaching breeding age at between 30 and 40cm.

Thats why there are different size lim-its and catch restrictions for recreational fishers who catch kob, although these are applied according to the region in which the fish is caught, because it really is very difficult to distinguish between the three species.

As an aside, it is the silver kob (Argyroso-mus inodorus) that is caught in significant quantities by the inshore trawl fishery on the south coast, raising the ire of the line-fishery which campaigned for years for bet-ter control of the trawl catch.

In response to these concerns, the trawl-ing industry has implemented a precau-

Would a fish by any other name taste as good?

Robinson writes: The local name given by a fish may be given on the spur of the moment. It may have reference to some passing object or contemporary incident or, again, it may suggest some comparison which is only obvious to the mind of the namer. Under such circum-stances the significance of a local name is soon lost and can only be guessed at by posterity. In oth-er cases the names are borrowed from known fish more or less re-sembling the South African forms, or are derived from some peculiari-ty of habit, shape or colour, which is always apparent. Again, the names may denote the habitat of the fish.

The name comes from Holland, and is there the name of a cod. The early settlers at the Cape thought they saw a resemblance to their well-known home fish, and gave it the same name, although it is an entirely different family. Here we call it Cape salmon or salmon only - another instance of mistaken identity.

This article looks at fisheries nomenclature, specifically the origin of the names of some South African species, and is based on excerpts from an article by Romer Robinson published in the Marine Biological Report No 3 for the year ending 30th June 1916.

Dave Japp and Claire Attwood collaborate to compare ideas

and understanding of fisheries management from

100 years ago with contempo-rary knowledge. The series of

articles is based on an almost complete set of Marine Biological Reports dating back

to 1904 authored by South Africas first marine biologist, John Gilchrist and others, and

purchased by Japp at an auction recently.

CASTING THE NET BACK 100 Years of fisheries management


tionary upper catch limit for silver kob (in 2014 this was 146 tonnes, which was not attained) and a move-on rule has also been introduced. It requires trawlers to move away from areas where they catch more than two percent by weight of silver kob in a single haul. Most of the silver kob catch is associated with fishing on grounds shallower than 100m.

Another interesting fact about kob is that it is the dusky kob that is the focus of ef-forts to develop a viable marine finfish farming industry in South Africa, most no-tably in East London where the climate is right and the Eastern Cape government has provided assistance and incentives to the fledgeling industry.

A snoek is a snoek, or is it? Robinson hailed from KZN and much of

his discussion in the Marine Biological Re-port of 1916 focuses on the difference in fish names between Natal and the Cape Colony. For example, he writes about one of South Africas best-known fish: the snoek, saying:

What is called snoek here (in KZN - ed) is quite a different species to the Cape snoek (Thyrsites alun). Our snoek is a small Cybium, and is really of the same tribe as the lo-cal barracouta. The name snoek is the Dutch name for the pike a fresh-water fish, and the early Dutch settlers called the Cape fish sea snoek shortened later to sim-ple snoek. We have no represen-tatives of the family Thyrsites in the Natal waters. Our snoek is a heavier and more shapely fish than the Cape fish, and does not occur in

large shoals.

Robinsons heavier and more shapely fish is almost certainly Scomberomorus plurilin-eatus, a game fish popular with spear and linefishers in KZN, which is today known as queen mackerel in English and gespikkelde katonkel in Afrikaans.

The fish is not a small Cybium, as Robin-son contends, but a member of the mack-erel or Scombridae family.

Queen mackerels are found in subtropical waters of the western Indian Ocean, a very different environment to the snoek, which occurs in the cold waters of the Benguela Current, between Namibe in southern An-gola and Mossel Bay in South Africa.

Adding further confusion is the Natal barracouta, which Robinson names Cybi-um commersoni. We suspect this is, in fact, the king mackerel KZNs couta now sci-entifically known as Scomberomorus com-merson. He also refers to barracouta as sea pike or Sphyraena jello, which is most, probably the pickhandle barracuda that he describes as rapacious, fierce fellows, with jaws well armed with sharp teeth. Hes right there, its not uncommon for these fish to attack spearfishermen.

According to Robinson, the name bar-racouta seems to be common to nearly ev-ery tropical country and is applied to many different species of fishes.

In New Zealand, barracouta is the name for snoek (Thyrsites Atun) whereas barra-cuda is the ferocious fellow that Robinson refers to above. And it is the barracuda that occupies a peculiar place in popular culture: your pool cleaner may be called a baracuda and did you know that the infa-mous American politician, Sarah Palin, was nicknamed Sarah Barracuda?

Endemic linefishIn the Marine Biological Report of 1916,

Robinson also writes about the names of some of South Africas endemic linefish species, many of which are currently not exploited owing to several catch moratoria that are imposed on the line fishery.

For instance, the popular Scotsman (Den-tex praeorbitalis in Smiths Sea Fishes) was called Scotchman and was so christened because it was a slippery customer and a hard fighter.

The Englishman (Chrysoblephus an-glicus in Smiths Sea Fishes) had the Latin name Chrysophrys and by all accounts was so-named after John Bull, being of a bluff profile and a ruddy complexion.

Another endemic species, the so-called Dageraad, according to Robinson means dawn and is a poetical name, and very likely it was when the East was all gold and crimson that the captor of the first speci-men was struck by the fishs gorgeous co-louring and burning hues of the approach-ing day.

The origin of the name of South Africas national fish Galjoen (Dichistius capensis), is attributed by Robinson to Dr Gilchrist who says the fish may have derived its name from its resemblance in shape to the high-built three-decker of the 15th cen-tury, called by Spanish and Dutch Galjoen or Galleon.

Dave Japp is a fisheries scientist who consults

broadly on fisheries matters relating to science

and management. He has an intimate knowl-edge of most fisheries in southern Africa and,

prior to 1997, worked for the Department of

Agriculture, Forestry and Fisheries.

Claire Attwood is a writer with a special interest

in fisheries. She is a regular columnist for Mari-time Review Africa.

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Floating a maritime opinion: security perspectives on a blue BRICS

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>>

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Nigerian Port Authority calls for united action on maritime security

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Boosting regional maritime security coordination in west and central Africa

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Capacity building remains a focus for SA Navy

Marine law and insurance FEATURE


Ongoing efforts by South Africas National Department of Transport (NDOT) culminated in February when they called a two-day conference to deliberate on national maritime transport policy to be presented to Cabinet. Deliberations saw the convergence of

maritime industry technocrats from aca-demia, government, Transnet and busi-ness at a two-day workshop called at short notice. Nonetheless, the purpose of the workshop was to solicit inputs to the green paper of the National Maritime Transport Policy. This is a drive towards creating a pol-icy that is tailored for South Africa and will promote the maritime industrys growth and address inefficiencies.

In his opening remarks, Sipho Dibakwane, acting chief director: Special Projects and Policy Analysis at the National Department of Transport said: We as government need a practical, and evidence-based policy.what is key is the transformation of this sector through short-term and long-term proposals.

Once the technical committee has incor-porated inputs, and the draft policy has reached parliament it will be gazetted and opened for another round of consultation.

Industry will likely want to see this lengthy process, which has been a stop-and-go affair, finalised and the policy put to work soon. This was the third stakeholder con-sultation since 2005.

The delay is attributed to the new devel-opments in government priorities, criticism from researchers and political principals, as well as competing interests in the ocean economy among other things.

The process asked for delegates to evalu-ate and debate policy considerations con-tained in the Review Report on the South African Maritime Transport Policy Report.

The report focused on the following areas: maritime governance; maritime safety;

maritime security; governance of mari-time security; marine ecosystem; maritime trade; maritime supply chain efficiencies; maritime sector development; and mari-time capacity and capability development.

Notably, under maritime trade the cabo-tage regime and the national ships register were robustly debated. Although govern-ment maintains that cabotage is a manda-tory consideration as a national transport system to curb congestion on roads, seem-ingly challenges abound.

During the meeting Andrew Pike, head of Ports, Terminals and Logistics Corridors sector at Bowman Gilfillan, pointed out that until a study is initiated, it cannot be guaranteed that cabotage will work for South Africa. Pike says that regional cabo-tage is likely to be a more feasible option. He is currently conducting a study in this area.

As industry we are encouraged by the fact that private sector is being included in this process. I certainly believe there is room for greater engagement, said Bren-da Horne-Ferreira, Chief Executive of the Southern Africa Shippers Transport and Lo-gistics Council (SASTALC).

Horne-Ferreira says her concern is wheth-er there has been sufficient financial modelling and research done on both the economic and socio-economic impacts, to drive interventions like cabotage and flag-ging. She emphasised that everything has to be driven by economic and socio-eco-nomic viability such that our supply chains remain globally competitive.

We just need to be certain that we dont legislate something that may be detrimen-tal to the industry and our global compet-itiveness in the future, added Horne-Fer-reira.

By Sbo Msane

The International Union of Marine Insurance (IUMI) has released its Spring Statistics, which confirm reduction of losses in the shipping sectors.

Hull losses show a general down-ward trend in total loss frequency for most vessel types. The frequency of total loss since 1997, as a percentage of the world fleet, continues to de-crease and has more than halved by both the number of vessels and ton-nage. However, an overall increase in percentage of the frequency of heavy weather and grounding relat-ed total losses is reported.

PA casualties also reduced year-on-year during the period 2007-2014. Groundings are reported as being a significant cause of this type of casu-alty.

The cost of salvage and wreck re-moval is also dramatically increasing - it is estimated that Superstorm San-dy is the sixth costliest event in glob-al insurance history.

Cargo theft, mysterious disappear-ance and the misappropriation of cargo is also growing in severity.

In general, exposures and risks are growing in size and complexity and these will require stable solutions in the future.

The energy industry continues to provide profitable results for insur-ers. The worldwide mobile fleet con-tinues to grow. Although the Gulf of Mexico is showing neutral growth, the rest of the world fleet has in-creased significantly. For the first time in recent years utilisation rates are down worldwide, with the excep-tion of drillships. Day rates continue to increase in most areas with only a few reductions reported.

Following significant losses experi-enced in 2013, control of well figures normalised in 2014. Average con-trol of well cost was approximately $14m in 2014 compared with $20m in 2013. The oil price reduction is expected to lead to less drilling this year.

Statistics report a continued reduction in total losses

Ongoing efforts by South Africas National Department of Transport (NDOT) culminated in February when they called a two-day con-ference to deliberate on national maritime transport policy to be presented to Cabinet.

Cabinet continues to consider South African maritime policy

The delay is attributed to the new developments in government priorities, criticism from researchers and

political principals, as well as competing interests in the ocean economy among other things.

FEATURE Marine law and insurance


Insofar as mortgages registered against ships are concerned, the question arises in an admiralty foreclosure, what priori-ty is accorded to a bank that has advanced monies to the owner of ship against the se-curity of a mortgage bond registered over the ship? Put differently, how secure is the security

afforded to a lender that has registered a mortgage bond over a ship (irrespective of the flag state of the ship where the mort-gage is registered)?

The answer to this question is some secu-rity, but not the best security.

In terms of the ranking or order of priority

of payment of claims under the Admiralty Jurisdiction Regulation Act (AJRA), a mort-gagees claim against the proceeds of the sale of an arrested ship (known as an admi-ralty fund) ranks low down in the pecking order of claims.

Claims that fall due for payment prior to that of a mortgagee include the costs and expenses of procuring the sale of the ship pending her sale as authorised by the High Court.

Significantly an extensive category of claims take ahead of a mortgagee and these claims can loosely be called one

year claims. Within the one-year claims there are sub-categories of claims which rank between themselves and of course prior to the claim of a mortgagee.

The one-year claimants include claims for crew wages, necessaries, port dues, sal-vage, marine insurance premiums and P&I calls.

Provided these claims arise not earlier than one year from the commencement of proceedings to enforce them (typically the arrest of the ship concerned) or before the submission of proof thereof (the creditor filing a claim against an admiralty fund), then these creditors will be paid their claims prior to the claims of the mortgagee.

Depleting the fundQuite often, the preference afforded to

one-year claims has the effect of substan-tially depleting the admiralty fund, which adversely affects the recovery of the debt secured by the mortgage registered over the ship.

So, the forced sale of an arrested ship in South Africa under the AJRA often is cold comfort to a mortgagee.

By way of contrast, one year claimants whose claims in ordinary civil law would be unsecured, now are elevated to the sta-tus of being secured and ranked ahead of those of a mortgagee under the AJRA.

South Africa with its extensive and novel jurisdiction under the AJRA (such as the as-sociated ship provisions) is not shipowner friendly. The same can be said regarding claims of a mortgage holder against an admiralty fund created consequent to the sale of an arrested ship:

Not great security, not bad security and sometimes no security at all.

Alan Goldberg is a maritime attorney of Rose Street Chambers in Cape Town

Dennis de Bruin, Marine Director at BMT Surveys, describes what a sur-veyor can do to turn an apparent total loss of high quality fuel into the accep-tance of a sound product.

Last year, BMT Surveys tanker depart-ment was requested by an oil trader to assist with an apparent insurmountable problem involving a high spec oil product cargo that was significantly contaminat-ed. At the time, the parties involved in the shipment were faced with the pos-sibility of a total loss of cargo, but BMT was tasked to find alternative solutions.

The cargo, worth $3 million, was a high quality fuel that had already been loaded on a tanker. The ship had been chartered to load at a West African port and to be discharged at another West African port.

After loading had been completed, the master was advised that the analysis of the cargo showed high amounts of a me-tallic type contaminant, resulting in the cargo being considered off spec. Follow-ing this discovery, the receivers refused to accept the cargo and the ship re-mained at the load port whilst all parties debated how to resolve the situation.

A plan was devised using a modified filtration unit to fit in-line at the ships discharge manifold in order to remove the contaminants. The unit and techni-cian,were dispatched to the load port and, once on board, a test quantity of cargo was recirculated through the filtra-tion unit with the receivers representa-tives attending.

A sample of the recirculated cargo was analysed and found to be within spec-ification. After lengthy discussions, the receivers agreed that the filtration unit could be used at the discharge port. Sub-ject to successful cargo sample analysis, the cargo would be accepted by the re-ceivers.

The technician and the filtration unit sailed with the ship to the port where the ship discharged the contaminated cargo through the filtration unit, thus removing all the contaminants. After fi-nal sampling and testing, the receivers eventually accepted the cargo without any further claim.

Interestingly, the filtration unit was so successful that the terminal bought one for permanent availability.

Resolving a contamination claim in West Africa

Lament of the mortgagee: ranking of claims in Admiralty Law in South Africa

Mortgages registered over immovable proper-ty give a mortgagee priority over claims of third parties in the event of the foreclosure of the principal debt or loan obligation for which the mortgage serves as security.

By Alan Goldberg

In terms of the ranking or order of priority of payment of claims under the Admiralty Jurisdic-tion Regulation Act (AJRA), a mortgagees claim against the proceeds of the sale of an arrested ship (known as an ad-miralty fund) ranks low down in the pecking order of claims.

Marine law and insurance FEATURE


The maritime boundary dispute between Ghana and Cte dIvo-ire moved forward during April when the Special Chamber of the the International Tribunal of the Law of the Sea (ITLOS) in Hamburg ruled that Ghana take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area.

The ruling comes after the Government of Cte dIvoire applied for provisional measures to be ordered in Ghanas mar-itime boundary dispute. The provisional measures application included a request that ITLOS orders Ghana to suspend ongo-ing exploration and exploitation operations in the disputed area until ITLOS gives its full verdict, which is expected towards the end of 2017. This arbitration was commenced

by Ghana in 2014 in an effort to resolve a dispute with regard to the maritime bound-ary between Ghana and Cte dIvoire.

The Chamber found that the exploration and exploitation activities, as planned by Ghana, may cause irreparable prejudice to the sovereign and exclusive rights invoked by Cte dIvoire in the continental shelf and superjacent waters of the disputed area, before a decision on the merits is given by the Special Chamber, and that the risk of such prejudice is imminent.

They, however, ruled that an order to sus-pend ongoing activities by Ghana in respect to drilling which has already taken place would: entail the risk of considerable fi-nancial loss to Ghana and its concession-aires and could also pose a serious danger to the marine environment resulting, in particular, from the deterioration of equip-ment.

In the ruling the Special champer ordered:

Ghana to take all necessary steps to

ensure that no new drilling either by Ghana or under its control takes place in the disputed area.

Ghana to take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorisation, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Cte dIvoire.

Ghana to carry out strict and continu-ous monitoring of all activities under-taken by Ghana or with its authorisa-tion in the disputed area with a view to ensuring the prevention of serious harm to the marine environment.

The Parties to take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and to cooperate to that end.

The Parties to pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute.

In addition, the Chamber ordered that Ghana and Cte dIvoire submit an initial report on the matter by 25 May 2015.

No new drilling for Ghana in disputed area

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FEATURE Marine law and insurance


Port Authority found liable for delays and damage in Maputo grounding case

The MV Dubai Sun touched the bottom of Berth 15 at the port of Maputo, Mozambique during loading of a cargo of

chrome. As a result, loading was delayed;

the vessel had to leave the berth, move

outside the port and could not return until about a week later when additional fenders were placed on the quayside to push the vessel out into deeper water.

Represented by Bowman Gilfillan, the

charterers of the vessel claimed damages from the port authority arising out of the additional charter hire which had to be paid to the owners of the vessel during the delay period together with all of the port and underwater inspection costs incurred.

According to Andrew Pike of Bowman Gil-fillan, the basis of the claim against MPDC was that they had made a negligent and false representation about the berth depth by publishing a particular water depth in the berth and confirming that it was safe for the vessel to load at the berth to the draft advised to MPDC by the vessels agents.

As it transpired, the water depth was sig-nificantly less than that published by MPDC and the vessel was unable to load safely, touching the bottom of the berth before completion of loading and taking a two de-gree list. The Charterers successfully sued MPDC in the Maputo high court, he said.

The Judge found that MPDC was respon-sible in terms of its concession agreement for the dredging of the berths and mainte-nance of their depths, even though dredg-ing was sub-contracted to a third party.

By making the misrepresentation about the berth depth at a time when it was re-sponsible for maintaining the berth depths, it brought about the losses suffered by the charterers as they relied on the misrepre-sentation to their detriment.

What was particularly heartening about the decision was to note the independence of the Mozambique Court and its willing-ness to give a judgement in favour a foreign entity against a partially State-owned local entity. More importantly, this judgment may have some other implications for MPDC given the recent spate of groundings at both the berth and in the channel of var-ious vessels, says Pike.

The vast majority of the activities that take place in a port require suitable Marine Insurance be it insurance of the cargo being imported or exported, be it cold stores and the contents therein, be it the vessel itself (for both Hull and Li-abilities) or be it the ship repairers who require specialist marine liability insur-ance.

The port itself requires numerous forms of insurance from Assets cover for the buildings, to hull and liability cover for tugs they operate, to general liability for their activities, both land-based and at sea.

Very often, the need for adequate Ma-rine Insurance is overlooked some-times knowingly, but also quite often through a lack of adequate appreciation for the risk exposures themselves.

Many companies will have what they believe to be adequate Marine Insurance in place only to find out in the event of a loss that this is unfortunately not the case.

It is for this reason that the advice of a professional Marine Insurance Broker and/or Risk Advisor should be sought.

Whether there is a need for appropriate Marine Insurance, should start with a thorough client needs analysis that will hopefully identify the various exposures that they may face in terms of their par-ticular operations.

A ship repairers primary form of cover, for instance, would be Ship Repairers Li-ability to cover them against the risk of incurring a liability arising out of their negligence in some shape or form.

Ship Repairers Liability (SRL) Insurance,

however, is liability-based and not first

party All Risks cover. For an SRL poli-

cy to respond, the loss being claimed for

would generally need to arise as a result

of the negligence of the ship repairer in

carrying out their work.

Whilst SRL Insurance is rather special-

ised and requires a professional insur-

ance brokers advice, there are numer-

ous other Insurance policies that would

need to be considered in relation to an

operation of this kind.

These would i

Documents

Maritime Review March April 2015